Cabin v. Community Newspapers, Inc.

• Decision Date: 08 June 1966
• Citation: 270 N.Y.S.2d 913,50 Misc.2d 574
• Parties: Roslyn CABIN, Plaintiff, v. COMMUNITY NEWSPAPERS, INC., Peter Penziger, Grey Mason and Ted Majeski, Defendants.
• Court: New York Supreme Court

Page 913

270 N.Y.S.2d 913

50 Misc.2d 574

Roslyn CABIN, Plaintiff, v. COMMUNITY NEWSPAPERS, INC., Peter Penziger, Grey Mason and Ted Majeski, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

June 8, 1966.

[50 Misc.2d 575] Davis & Quat, New York City, for plaintiff.

Coudert Brothers, New York City, for defendants.

MEMORANDUM

BERNARD S. MEYER, Justice.

Defendants in this libel action move, on the complaint alone, to dismiss or in the alternative for an order requiring that plaintiff separately state and number. The corporate defendant owns the Great Neck Record, on whose editions of November 11, 18 and 25, 1965, the alleged libel was published. The three individual defendants are the publisher, the president and executive editor, and the editor of the newspaper. Plaintiff was at the time of publication a member of the Great Neck Board of Education. The complaint charges that in the three articles, which are annexed to the complaint as exhibits, 'the defendants charged that the plaintiff, the parent of a student in a Great Neck high school, exercising coercion and improper pressure upon her son's mathematics teacher, forced said teacher to raise the mathematics grade of said student, plaintiff's son; that this oppressive, corrupt and immoral conduct on the part of the plaintiff was responsible for and resulted in the teacher's resignation from the school system; that plaintiff had tampered with marks or grades and violated a position of public trust and confidence to her own advantage and as a member of the Board of Education had abused the prestige and power of her office for personal gain; that plaintiff should accordingly resign as a member of the Great Neck school board.' and that 'At the times of such publications defendants knew, or could with the exercise of reasonable care have ascertained, that the matters they published of and concerning the plaintiff were false, that plaintiff had acted as behooves a parent and in all respects properly; that said publications by the defendants were made recklessly, maliciously and in bad faith.' Defendants contend that the complaint is deficient in not pleading actual malice, in not pleading special damage, in not alleging the exact words of the article which it is contended are libelous and in not stating separate causes of action against each defendant. The complaint is dismissed, with leave, however, to replead.

Plaintiff concedes, as indeed she must since she is an elected official (Education Law, § 1702), that she is a public official within the doctrine of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. She argues, however, that the alleged defamation is nonetheless not privileged because 'it was no part of plaintiff's function as a board member to see her son's teacher about his individual grades' and, therefore, the articles concerned her private rather than her official conduct. The fallacy of the argument is demonstrated by plaintiff's complaint which, as above noted, alleges that defendants charged 'that plaintiff had tampered with marks or grades and violated a position of public trust and confidence to her own advantage and as a member of the Board of Education had abused the prestige and power of her office for personal gain,' (emphasis supplied). The thrust of the publication was, as the italicized portions of the complaint make clear, that it was part of plaintiff's function as a Board member not to see her son's teacher about his grades, or at least not to use the prestige of her office in so doing. 'Private' actions of a public official which involve the use of his official position are within the area of protected comment, Gilberg v. Goffi, 21 A.D.2d 517, 251 N.Y.S.2d 823, aff'd 15 N.Y.2d 1023, 260 N.Y.S.2d 29, 207 N.E.2d 620; cf. Garrison v. State of Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 13 L.Ed.2d 125. Clearly, therefore, and as a matter of law in view of the allegations of the complaint, the private conduct exception to the Sullivan rule does not apply and the articles are privileged unless published with actual malice.

Since the qualifiedly privileged nature of the publication is apparent on the face of the complaint, the complaint is insufficient unless it includes allegations showing the publication to be outside the scope of the privilege, Fulton v. Ingalls, 165 App.Div. 323, 151 N.Y.S. 130, aff'd 214 N.Y. 665, 108 N.E. 1094; Tierney v. Ruppert, 150 App.Div. 863, 135 N.Y.S. 365; cf. Corwin v. Berkwitz, 190 App.Div. 952, 179 N.Y.S. 915. As a matter of New York law, a general averment that the statement was made maliciously, Viele v. Gray, 18 How.Pr. 550, 569; Mellen v. Athens Hotel Company, 153 App.Div. 891, 138 N.Y.S. 451; Tierney v. Ruppert, supra; S & R Lincoln Mercury, Inc. v. Fleishman Mtrs., Inc., 38 Misc.2d 182, 236 N.Y.S.2d 647; National Variety Artists Inc. v. Mosconi, 169 Misc. 982, 9 N.Y.S.2d 498; see Ostrowe v. Lee, 256 N.Y. 36; Dempsey v. Time, Inc., 43 Misc.2d 754, 252 N.Y.S.2d 186, or that defendant was actuated by actual malice, Gasperini v. Manginelli, 196 Misc. 547, 90 N.Y.S.2d 575; see Kahane v. Murdock, 218 App.Div. 591, 218 N.Y.S. 641, has been considered sufficient, without allegation of the evidence upon which the averment is based. New York cases to the contrary exist, Herman v. Letteau, N.Y.L.J. 5/29/64, p. 20, col. 8; Burstein v. Movielab, Inc., N.Y.L.J. 3/13/64, p. 17, col. 6; Dairymen's League Co-op Assn., Inc. v. Brockway Co., 173 Misc. 183, 18 N.Y.S.2d 551; Marxman Pipes, Inc. v. Columbia Pictures Corp., Sup., 129 N.Y.S.2d 858, n. o. r., but the first two are predicated upon a misapplication of the summary judgment rule of Shapiro v. Health Ins. Plan of Greater New York, 7 N.Y.2d 56, 194 N.Y.S.2d 509, 163 N.E.2d 333, to a motion to dismiss for insufficiency, and the last two held allegations of malice and wilful intent to be conclusory, an objection no longer valid under CPLR 3013, see 3 Weinstein-Korn-Miller, New York Civil Practice, pp3013.02, 3013.03. While it would not be improper under CPLR 3013 for plaintiff to plead the facts on which she will ultimately rely to prove actual malice, she is not required as a matter of New York law to do so.

Defendants argue, however, that plaintiff is constitutionally required to plead facts rather than conclusions. Nothing in the Sullivan case so indicates, and Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, upon which defendants rely, is specifically stated by the court to be concerned not with constitutional limitations but with pre-emption resulting from enactment of a federal statute. Moreover, the Linn decision's direction that on remand leave should be granted to amend to make 'specific allegations' of malice does not necessarily import that evidentiary rather than conclusory factual allegations are required. Of the out of state cases on the point decided since the Sullivan decision was handed down, two, Noonan v. Rousselot, Cal.App., 48 Cal.Rptr. 817, and Kennedy v. Mid-Continent Telecasting, Inc., 193 Kan. 544, 394 P.2d 400 simply followed the previously defined law of the particular state in requiring specific facts to be pleaded (see, generally, Annotation: 76 A.L.R.2d 696), one, Wells v. Morton, 388 S.W.2d 607 (Ky.) refused...